Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 19117 

List of Subjects in 18 CFR Part 381 

Electric power plants, Electric 

utilities, Natural gas, Reporting and 

recordkeeping requirements. 

Thomas R. Herlihy, 

Executive Director. 

■ In consideration of the foregoing, the 

Commission amends part 381, Chapter I, 

Title 18, Code of Federal Regulations, as 

set forth below. 

PART 381—FEES 

■ 1. The authority citation for part 381 

continues to read as follows: 

Authority: 15 U.S.C. 717–717w; 16 U.S.C. 

791–828c, 2601–2645; 31 U.S.C. 9701; 42 

U.S.C. 7101–7352; 49 U.S.C. 60502; 49 App. 

U.S.C. 1–85. 

§ 381.302 [Amended] 

■ 2. In 381.302, paragraph (a) is 

amended by removing ‘‘$19,890’’ and 

adding ‘‘$20,940’’ in its place. 

§ 381.303 [Amended] 

■ 3. In 381.303, paragraph (a) is 

amended by removing ‘‘$29,040’’ and 

adding ‘‘$30,560’’ in its place. 

§ 381.304 [Amended] 

■ 4. In 381.304, paragraph (a) is 

amended by removing ‘‘$15,230’’ and 

adding ‘‘$16,020’’ in its place. 

§ 381.305 [Amended] 

■ 5. In 381.305, paragraph (a) is 

amended by removing ‘‘$5,700’’ and 

adding ‘‘$6,000’’ in its place. 

§ 381.403 [Amended] 

■ 6. Section 381.403 is amended by 

removing ‘‘$9,900’’ and adding 

‘‘$10,420’’ in its place. 

§ 381.505 [Amended] 

■ 7. In 381.505, paragraph (a) is 

amended by removing ‘‘$17,110’’ and 

adding ‘‘$18,000’’ in its place and by 

removing ‘‘$19,360’’ and adding 

‘‘$20,380’’ in its place. 

Subpart H of Part 381 [Removed] 

■ 8. Subpart H of part 381 (consisting of 

§ 381.801) is removed. 

[FR Doc. E7–7190 Filed 4–16–07; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 938 

[PA–147–FOR] 

Pennsylvania Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement (OSM), 

Interior. 

ACTION: Final rule; approval of 

amendment. 

SUMMARY: We are removing five required 

amendments to the Pennsylvania 

regulatory program (the ‘‘Pennsylvania 

program’’) regulations under the Surface 

Mining Control and Reclamation Act of 

1977 (SMCRA or the Act) related to 

alternative reclamation plans; 

alternative postmining land use 

determinations; and bond forfeiture 

sites where reclamation is unreasonable, 

unnecessary, or impossible. 

Pennsylvania revised its program to be 

consistent with the corresponding 

Federal regulations and SMCRA. 

We are also approving two of four 

additional requested changes (not 

required) to the Pennsylvania program. 

Pennsylvania revised its program at its 

own initiative to clarify ambiguities and 

initiate changes in its fee collection 

calculations. The two approved changes 

are in regard to a typographical 

reference error and the evaluation of 

bond forfeiture sites. We are deferring 

our decision on two changes in regard 

to the discontinuation of a $100 per acre 

reclamation fee. 

EFFECTIVE DATE: April 17, 2007. 

FOR FURTHER INFORMATION CONTACT: 

George Rieger, Chief, Pittsburgh Field 

Division, Telephone: (717) 782–4036, email: grieger@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Pennsylvania Program 

II. Submission of the Amendment 

III. OSM’s Findings 

IV. Summary and Disposition of Comments 

V. OSM’s Decision 

VI. Procedural Determinations 

I. Background on the Pennsylvania 

Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its State program 

includes, among other things, ‘‘a State 

law which provides for the regulation of 

surface coal mining and reclamation 

operations in accordance with the 

requirements of the Act * * *; and 

rules and regulations consistent with 

regulations issued by the Secretary 

pursuant to the Act.’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

conditionally approved the 

Pennsylvania program on July 30, 1982. 

You can find background information 

on the Pennsylvania program, including 

the Secretary’s findings, the disposition 

of comments, and conditions of 

approval in the July 30, 1982, Federal 

Register (47 FR 33050). You can also 

find later actions concerning 

Pennsylvania’s program and program 

amendments at 30 CFR 938.11, 938.12, 

938.13, 938.15 and 938.16. 

II. Submission of the Amendment 

By letter dated May 23, 2006 the 

Pennsylvania Department of 

Environmental Protection (PADEP) sent 

us an amendment to revise its program 

regulations at 25 Pennsylvania Code 

(Administrative Record No. PA 793.11) 

under SMCRA (30 U.S.C. 1201 et seq.). 

Pennsylvania sent the amendment in 

response to five required program 

amendments codified in the Federal 

regulations at 30 CFR 938.16 (mm), (nn), 

(oo), (pp), and (qq), and to include four 

additional changes made at its own 

initiative. The required amendments 

pertain to alternative reclamation plans, 

alternative post mining land use 

determinations, and bond forfeiture 

sites where reclamation is unreasonable, 

unnecessary, or impossible and were 

required in a final rule notice published 

in the Federal Register on October 24, 

1991 (56 FR 55080). The revisions that 

Pennsylvania proposed at its own 

initiative concern money received from 

reclamation fees and the evaluation of 

bond forfeiture sites. 

We announced receipt of the 

proposed amendment in the August 28, 

2006, Federal Register (71 FR 50868). In 

the same document, we opened the 

public comment period and provided an 

opportunity for a public hearing or 

meeting on the amendment’s adequacy 

(Administrative Record No. PA 793.17). 

The public comment period ended on 

September 27, 2006. We did not hold a 

public hearing or meeting because no 

one requested one. We received written 

comments from three Federal agencies 

and one environmental organization. 

III. OSM’s Findings 

Following are the findings we made 

concerning the amendment under 

SMCRA and the Federal regulations at 

30 CFR 732.15 and 732.17. We are 

approving the amendment, except as 

noted below, which includes removing 

five required amendments to the 

Pennsylvania regulatory program. We 


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are removing the required program 

amendments at 30 CFR 938.16 (mm), 

(nn), (oo), (pp), and (qq). Any revisions 

that we do not specifically discuss 

below concern nonsubstantive wording, 

editorial, or re-numbering of section 

changes and are approved here without 

discussion. 

1. Required Amendment at 30 CFR 

938.16 (mm). Alternative Reclamation 

Plans and Applicable Performance 

Standards 

This required program amendment 

concerns alternative reclamation plans 

and applicable performance standards. 

The required program amendment 

codified in the Federal regulations at 30 

CFR 938.16(mm) requires Pennsylvania 

to amend 25 Pa. Code 86.187(b)(1) or 

otherwise amend its program by 

requiring that alternative reclamation 

plans comply with all applicable 

performance standards in accordance 

with 86.189(c)(2), (c)(3), or (c)(4), 

whichever is appropriate. 

The amendment was required because 

section 86.187(b)(1) can be 

misinterpreted. Currently paragraph 

(b)(1) provides that the PADEP may 

prepare and implement an alternative 

reclamation plan where it determines 

that the original plan may be amended 

to decrease the cost of reclaiming the 

bond forfeiture site. Without more 

clarification, this paragraph can be 

interpreted to allow the PADEP to 

approve an alternative reclamation plan 

that would not require reclamation in 

accordance with the applicable 

performance standards in accordance 

with 86.189(c)(2), (c)(3), and (c)(4), 

whichever is appropriate. 

Therefore, paragraph (1) of subsection 

86.187(b) was not approved by OSM in 

an October 24, 1991, rulemaking to the 

extent that it would allow the 

implementation of an alternative 

reclamation plan that fails to require 

reclamation in accordance with the 

applicable performance standards 

mentioned above. See 56 FR 55083. 

In response to this required 

amendment, Pennsylvania has amended 

25 Pa. Code 86.187(b) by clarifying that 

an alternative reclamation plan must be 

completed pursuant to 86.187(c). The 

PADEP is also amending 25 Pa. Code 

86.187(c) with this amendment to 

include the requirement that alternative 

reclamation plans must comply with all 

applicable performance standards in 

accordance with 86.189(c)(2), (c)(3), and 

(c)(4). See Finding 2 below. 

We find that this clarification satisfies 

the required program amendment 

codified in the Federal regulations at 30 

CFR 938.16(mm) and can be approved. 

Therefore, the required program 

amendment at 30 CFR 938.16(mm) can 

be removed. 

2. Required Amendments at 30 CFR 

938.16 (nn). Bond Forfeiture Sites: 

Alternative Reclamation Plans and 

Alternative Postmining Land Use 

This required program amendment 

concerns bond forfeiture sites 

(alternative postmining land use 

determinations and alternative 

reclamation plans). The required 

program amendment codified in the 

Federal regulations at 30 CFR 938.16 

(nn) requires Pennsylvania to submit a 

proposed amendment to 25 Pa. Code 

86.187(c) and section 18(c) of the 

Pennsylvania Surface Mining 

Conservation and Reclamation Act (PA 

SMCRA) or otherwise amend its 

program to be no less effective than 30 

CFR 816.133(a) and 817.133(a) by 

requiring that alternative postmining 

land use determinations for sites with 

forfeited bonds, under the Federal 

interim program or under 

Pennsylvania’s permanent program, be 

made to ensure that all disturbed areas 

are restored to conditions that are 

capable of supporting either the uses 

they were capable of supporting before 

any mining, or higher or better uses. 

The amendment was required because 

section 18(c) of PA SMCRA and 25 Pa. 

Code 86.187(c) currently allow an 

alternative reclamation plan that merely 

calls for reclaiming the land so that it is 

suitable for agriculture, forests, 

recreating wildlife or water 

conservation, without regard to whether 

the alternative postmining land use is 

equal to or higher than the premining 

landuse as required by 30 CFR 

816.133(a) and 817.133(a). 

Therefore, section 18(c) of PA SMCRA 

and paragraph (c) of section 86.187 were 

not approved by OSM in an October 24, 

1991, rulemaking to the extent that they 

did not provide for all disturbed areas 

to be restored to conditions that are 

capable of supporting either the uses 

they were capable of supporting before 

any mining, or higher or better uses. See 

56 FR 55084. 

In response to this required 

amendment, Pennsylvania has amended 

25 Pa. Code 86.187(c) by deleting 

language which allowed for alternate 

reclamation plans for bond forfeiture 

sites that would make the sites suitable, 

at a minimum, for agriculture, forests, 

recreation, wildlife or water 

conservation. The PADEP also added 

language to 86.187(c) that makes it clear 

that an alternate plan must comply with 

all applicable performance standards at 

86.189(c)(2) through (c)(4), whichever is 

appropriate and ensure that all 

disturbed areas are restored to 

conditions that are capable of 

supporting either the uses they were 

capable of supporting before any mining 

or higher or better uses. 

PADEP did not submit changes to 

section 18(c) of PA SMCRA. 

Nevertheless, we believe that section 

18(c) can be interpreted in a manner 

that does not compromise the amended 

requirements of section 86.187(c), and 

therefore conclude that the statutory 

provision need not be amended. Should 

we later determine that the previously 

unapproved portion of section 18(c) is 

being interpreted to override the new 

requirements at § 86.187(c), such that 

the program is again less effective than 

the Federal regulations, we will take 

action to reinstate the disapproval of the 

offending portion of section 18(c). 

For the foregoing reasons, we find that 

the amendment to 25 Pa. Code 86.187(c) 

satisfies the requirements of 30 CFR 

938.16(nn) and can be approved. 

Therefore, the required program 

amendment codified in the Federal 

regulations at 30 CFR 938.16(nn) can be 

removed. 

3. Required Amendment at 30 CFR 

938.16 (oo). Bond Forfeiture Sites: 

Alternative Postmining Land Use 

Determinations/Alternative Reclamation 

Plans 

This required program amendment 

concerns bond forfeiture sites 

(alternative postmining land use 

determinations and alternative 

reclamation plans). The required 

program amendment codified in the 

Federal regulations at 30 CFR 938.16(oo) 

requires Pennsylvania to delete 25 Pa. 

Code 86.189(c)(5) or otherwise amend 

its program to be no less effective than 

30 CFR 816.133(a) and 817.133(a) by 

requiring that sites bonded during the 

Federal interim program or under 

Pennsylvania’s permanent program be 

restored to conditions that are capable 

of supporting the uses they were 

capable of supporting before any mining 

or higher or better uses. 

The amendment was required because 

25 Pa. Code 86.189(c)(5) currently 

allows for an alternative reclamation 

plan to make the site suitable, at a 

minimum, for agriculture, forests, 

recreation, wildlife or water 

conservation. The Federal regulations at 

30 CFR 816.133(a) and 817.133(a) 

require that all disturbed areas be 

restored to uses they were capable of 

supporting before any mining or to 

higher or better uses. The Pennsylvania 

provision lacks a requirement that a site 

be restored to a higher and better use. 

Therefore, paragraph (c)(5) of 

subsection 86.187 was not approved by 

OSM in an October 24, 1991, 


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rulemaking to the extent that it did not 

provide for all disturbed areas to be 

restored to conditions that are capable 

of supporting either the uses they were 

capable of supporting before any 

mining, or higher or better uses. See 56 

FR 55085. For the same reason, the 

Director did not approve the cross 

references to 86.189(c)(5) contained in 

86.189(c)(2), (c)(3), and (c)(4). 

In response to this required 

amendment, Pennsylvania has amended 

25 Pa. Code 86.189 (c)(5) by deleting 

this paragraph which allowed for 

alternate reclamation plans for bond 

forfeiture sites that would make the sites 

suitable, at a minimum, for agriculture, 

forests, recreation, wildlife or water 

conservation. Federal regulations at 30 

CFR 816.133(a) (relating to post mining 

land use) require that all disturbed areas 

be restored to uses they were capable of 

supporting before mining or to higher or 

better uses. The PADEP also deleted 

references to subsection (c)(5) at 

86.189(c)(2), (c)(3), and (c)(4). 

We find that the amendment to 25 Pa. 

Code 86.187(c)(2)–(5) satisfies the 

requirements of 30 CFR 938.16(oo) and 

can be approved. Therefore, the 

required program amendment codified 

in the Federal regulations at 30 CFR 

938.16 (oo) can be removed. 

4. Required Amendment at 30 CFR 

938.16 (pp): Bond Forfeiture Sites 

Where Reclamation Is Unreasonable, 

Unnecessary, or Impossible 

This required program amendment 

concerns bond forfeiture sites where 

reclamation is considered to be 

unreasonable, unnecessary, or 

impossible. The required program 

amendment codified in the Federal 

regulations at 30 CFR 938.16 (pp) 

requires that Pennsylvania delete 25 Pa. 

Code 86.190(a)(3). 

The amendment is required because 

this section allows the landowner of a 

bond forfeiture site to prevent 

reclamation, rendering 25 Pa. Code 

86.190 less effective than the Federal 

regulations at 30 CFR 800.50(b)(2). 

While Title V of SMCRA, 30 U.S.C. 

1251–1279, contains no specific 

provisions authorizing the regulatory 

authority to compel a recalcitrant 

landowner to allow reclamation, the 

Federal regulations at 30 CFR 

800.50(b)(2) are quite explicit in 

requiring the regulatory authority to use 

funds collected from the bond forfeiture 

to complete the reclamation plan for 

that site, recalcitrant landowners 

notwithstanding. Therefore, paragraph 

86.190(a)(3) was not approved in an 

October 24, 1991, rulemaking. See 56 FR 

55085–55086. 

In response to this required 

amendment, Pennsylvania has deleted 

25 Pa. Code 86.190(a)(3). We find that 

the deletion of 25 Pa. Code 86.190(a)(3) 

satisfies the requirements of 30 CFR 

938.16(pp) and can be approved. 

Therefore, the required program 

amendment codified in the Federal 

regulations at 30 CFR 938.16 (pp) can be 

removed. 

5. Required Amendment at 30 CFR 

938.16 (qq): Bond Forfeiture Sites Where 

Reclamation Is Unreasonable, 

Unnecessary, or Impossible 

This required program amendment 

concerns bond forfeiture sites where 

reclamation is considered to be 

unreasonable, unnecessary, or 

impossible. The required program 

amendment codified in the Federal 

regulations at 30 CFR 938.16 (qq) 

requires that Pennsylvania delete the 

words ‘‘but are not limited to’’ from the 

introductory paragraph of 25 Pa. Code 

86.190(a). 

The amendment was required because 

the introductory language of subsection 

(a) of section 86.190 currently includes 

the words ‘‘but are not limited to,’’

which are used to refer to the reasons 

justifying a determination that 

reclamation under the reclamation plan 

is unreasonable, unnecessary or 

physically impossible. Any such 

reasons which are not specifically 

contained in section 86.190 were not 

approved. 

Currently, 25 Pa. Code 86.190(a) 

specifies parameters for determining 

when completion of the approved 

reclamation plan is unreasonable, 

unnecessary, or physically impossible. 

The reasons justifying such a 

determination include, but are not 

limited to the following: (1) The site has 

been re-permitted and re-bonded for 

mining and reclamation is required as a 

condition of the permit; (2) the site has 

been otherwise reclaimed; (3) the 

landowner refused to allow the site to 

be reclaimed and the site is not a hazard 

to public health, safety, and welfare or 

adjacent property. Subsection 86.190(a) 

also provides that if the reclamation 

plan cannot be completed, the bond 

amount will be made available for 

expenditure to reclaim other lands or 

restore water supplies affected by other 

surface mining operations for which the 

Department has forfeited bonds. 

As we noted in an October 24, 1991, 

rulemaking notice, the introductory 

language of subsection (a) of section 

86.190, concerning the use of funds for 

other sites where reclamation of the 

forfeited site is unreasonable, 

unnecessary or physically impossible, 

mirrors the language of subsection (b), 

section 18, of PA SMCRA. See 56 FR 

55085. This provision of Pennsylvania 

law was approved by the Secretary, as 

part of Pennsylvania’s original 

permanent program approval. 

The reasons specified at section 

86.190(a)(1), (a)(2), and (a)(3) for making 

a determination not to reclaim a site 

have not previously been approved by 

OSM. If as provided in paragraph (1) of 

subsection (a), the site has been repermitted and re-bonded for mining 

with full reclamation of the entire area 

made a permit condition, then forfeited 

bond money from the original permit is 

not needed for reclamation of the site. 

Likewise, as provided in paragraph (2), 

forfeited bond money is not needed to 

reclaim the site if it has been otherwise 

reclaimed, as long as such reclamation 

was performed in compliance with the 

reclamation plan and in accordance 

with the performance standards of the 

Pennsylvania program. Therefore, while 

there are no specific Federal 

counterparts to paragraphs (1) and (2) of 

subsection (a) of section 86.190, we 

previously found that these provisions 

were not inconsistent with SMCRA and 

the Federal regulations and they were 

approved to the extent that full 

reclamation of the site in accordance 

with the reclamation plan and all 

applicable performance standards are 

required. The PADEP also amended 

§ 86.190(a)(3) by deleting this section. 

See Finding 4. Because the basis for the 

Secretary’s approval of 18(b) of 

PASMCRA had not changed, the 

Director approved the introductory 

paragraph of subsection 86.190 (a) in an 

October 24, 1991, rulemaking, except for 

the words ‘‘but are not limited to.’’ Id. 

In response to this required 

amendment, Pennsylvania has amended 

25 Pa. Code 86.190(a) to delete the 

words ‘‘but are not limited to’’ to make 

clear that any reasons other than those 

specifically provided in 25 Pa. Code 

86.190(a) are not permissible. We find 

that the amendment to 25 Pa. Code 

86.190(a) satisfies the requirements of 

30 CFR 938.16(qq) and can be approved. 

Therefore, the required program 

amendment codified in the Federal 

regulations at 30 CFR 938.16 (qq) can be 

removed. 

6. Additional Change: 25 Pa Code 

86.17(e)—Reclamation Fees 

Pennsylvania has amended this 

subsection to discontinue the collection 

of the $100 per acre reclamation fee 

from permittees under 25 Pa. Code 

86.17(e). The reclamation fee is 

deposited in the Surface Mining 

Conservation and Reclamation Fund 

(Fund) as a supplement to forfeited 

bonds and is used for reclaiming mining 


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19120 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 

operations which have defaulted on 

their obligation to reclaim mined sites. 

Because issues regarding the Fund’s 

solvency had become apparent, PADEP 

revised its bonding requirements and is 

now requiring all mine permits to post 

a full cost reclamation bond. The 

PADEP believes that because all of its 

permittees are now subject to full cost 

bonding requirements, there is no longer 

a basis for maintaining the supplement 

(the per acre fee). 

The issue of whether OSM acted 

within its discretion when it concluded 

that the Fund is no longer subject to the 

requirements of 30 CFR 800.11(e) is 

pending before the United States Court 

of Appeals for the Third Circuit in the 

matter of Pennsylvania Federation of 

Sportsmen’s Clubs v. Norton, (PFSC v. 

Norton) No. 06–1780. The outcome of 

this case could affect whether OSM may 

approve the proposed change to 25 Pa. 

Code 86.17(e). Therefore, in the interest 

of judicial economy, we are deferring 

our decision on this proposed change 

until final disposition of the PFSC v. 

Norton matter. 

7. Additional Change: 25 Pa Code 

86.187(a)(1)—Money Received From the 

Fees 

Pennsylvania has amended 25 Pa. 

Code 86.187(a)(1) to correct a 

typographical error. In paragraph (a)(1), 

reference was improperly made to 25 

Pa. Code 86.17(b) (relating to permit and 

reclamation fees). The correct reference 

is to 25 Pa. Code 86.17(e). We find that 

the amended citation at 25 Pa. Code 

86.187(a)(1) corrects a citation error and 

does not render the Pennsylvania 

program inconsistent with SMCRA or 

the Federal Regulations and can be 

approved. 

8. Additional Change: 25 Pa Code 

86.188(b)(5) and (c)(3)—Evaluation of 

Bond Forfeiture Sites 

Pennsylvania has amended 25 Pa. 

Code 86.188 by deleting 25 Pa. Code 

86.188(b)(5) and 86.188(c)(3) in order to 

make it clear that bond forfeiture funds 

posted for and still needed to complete 

reclamation of the specific site for 

which the bonds were forfeited will not 

be used for reclamation of other sites 

until reclamation of the forfeited site 

has been completed. 

Currently, 25 Pa. Code 86.188(b) lists 

the categories in decreasing priority 

order to be used when the Department 

is considering bond forfeiture site 

reclamation. Subsection (b)(5) refers to 

‘‘other sites which need reclamation.’’

Furthermore, section (c) lists the factors 

that the Department will consider in 

selecting sites for reclamation under 25 

Pa. Code 86.189(b)(1). Subsection (c)(3) 

considers the availability of funds to 

accomplish the required reclamation of 

the site or that portion of the site which 

is threatening life, health, safety, other 

property or the environment. 

As noted in an October 24, 1991, 

rulemaking notice, subsections (b) and 

(c) were not approved by OSM to the 

extent that they would allow bond 

forfeiture funds posted for and needed 

to complete reclamation of a specific 

site to be used for reclamation of other 

sites. See 56 FR at 55084. To the extent 

that these subsections provided only for 

a ranking of sites for reclamation 

without compromising the requirement 

that all sites for which bonds were 

posted be properly reclaimed, it was 

determined they were not inconsistent 

with section 509(a) of SMCRA and 30 

CFR 800.50(b)(2) of the Federal 

regulations. 

The PADEP is addressing the 

concerns expressed in the October 24, 

1991, rulemaking and is deleting the 

subsections (b)(5) and (c)(3) to remove 

any doubt that the PADEP intends to 

maintain adequate bonding to have 

funds available for completion of 

reclamation should the bonds be 

forfeited. We find that the amended 

regulations at 25 Pa. Code 86.188(b) and 

(c) are not inconsistent with SMCRA or 

the Federal regulations and can be 

approved. 

9. Additional Change: 25 Pa Code 

86.283(c)—Reclamation Fees for 

Remining Areas 

Pennsylvania has amended 25 Pa. 

Code 86.283(c) to remove a reference to 

the per acre reclamation fee for 

remining areas for mine operators 

approved to participate in the financial 

guarantees program. PADEP has 

submitted this amendment to create 

consistency with the proposed 

amendment to 86.17(e) that would 

delete the per-acre reclamation fee 

requirement. See Finding 6 above. 

We are deferring our decision on the 

proposed amendment at 25 Pa. Code 

86.283(c) for the same reason set forth 

above at Finding 6 in support of our 

deferral with respect to the proposed 

change at 86.17(e). 

IV. Summary and Disposition of 

Comments 

Public Comments 

We asked for public comments on the 

amendment (Administrative Record No. 

PA–793.17). We received comments 

from one organization, the Citizens for 

Pennsylvania’s Future (PennFUTURE) 

(Administrative Record No. PA 793.18). 

PennFUTURE objected to the portion of 

the program amendment that would 

discontinue the collection of 

Pennsylvania’s reclamation fee at 25 Pa. 

Code 86.17(e), and requested that we 

defer our decision on this proposed 

change until such time as the matter of 

PFSC v. Norton is decided by the United 

States Court of Appeals for the Third 

Circuit. 

As we noted above in Finding 6 

above, we are deferring our decision 

with respect to the proposed 

amendment to 86.17(e), as well as on an 

ancillary proposed change at 86.283(c) 

(See Finding 9 above). Because we are 

deferring our decision, we will not 

respond to PennFUTURE’s comments in 

opposition to these amendments in this 

rulemaking. Instead, we will respond to 

the comments in a future rulemaking, 

wherein we will decide whether or not 

to approve the proposed changes to 

86.17(e) and 86.283(c). 

Federal Agency Comments 

Under Federal regulations at 30 CFR 

732.17(h)(11)(i) and section 503(b) of 

SMCRA, we requested comments on the 

amendment from various Federal 

agencies with an actual or potential 

interest in the Pennsylvania program 

(Administrative Record No. PA 793.12). 

The Mine Safety and Health 

Administration (MSHA), District 1, 

responded (Administrative Record No. 

PA 793.13) and stated that it did not 

have any comments or concerns 

regarding this request. The Natural 

Resources Conservation Service 

responded (Administrative Record No. 

PA 793.14) and stated that it did not 

have any comments regarding this 

request. 

Environmental Protection Agency (EPA) 

Concurrence and Comments 

Under Federal regulations at 30 CFR 

732.17(h)(11)(i) and (ii), we are required 

to get a written concurrence from EPA 

for those provisions of the program 

amendment that relate to air or water 

quality standards issued under the 

authority of the Clean Water Act (33 

U.S.C. 1251 et seq.) or the Clean Air Act 

(42 U.S.C. 7401 et seq.). 

None of the revisions that 

Pennsylvania proposed to make in this 

amendment pertain to air or water 

quality standards. Therefore, we did not 

ask EPA to concur on the amendment. 

On June 6, 2006, we requested 

comments on the amendment from EPA 

(Administrative Record No. PA 793.15). 

The EPA, Region III, responded and 

stated that it did not identify any 

inconsistencies with the Clean Water 

Act or any other statutes or regulations 

under its jurisdiction. 


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Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 19121 

V. OSM’s Decision 

Based on the above findings, we 

approve, with certain exceptions, the 

amendment Pennsylvania sent to us on 

May 23, 2006. We are removing the 

required program amendments codified 

in the Federal regulations at 30 CFR 

938.16(mm), (nn), (oo), (pp), and (qq) 

and approving two additional changes 

to the Pennsylvania program. We defer 

decision on two provisions regarding 

the reclamation fees at 25 Pa. Code 

86.17(e) and 86.283(c). See Findings 6 

and 9, respectively. 

To implement this decision, we are 

amending the Federal regulations at 30 

CFR 938, which codify decisions 

concerning the Pennsylvania program. 

We find that good cause exists under 5 

U.S.C. 553(d)(3) to make this final rule 

effective immediately. Section 503(a) of 

SMCRA requires that the State’s 

program demonstrate that the State has 

the capability of carrying out the 

provisions of the Act and meeting its 

purposes. Making this regulation 

effective immediately will expedite that 

process. SMCRA requires consistency of 

State and Federal standards. 

VI. Procedural Determinations 

Executive Order 12630—Takings 

This rule does not have takings 

implications. This determination is 

based on the analysis performed for the 

counterpart Federal regulations. 

Executive Order 12866—Regulatory 

Planning and Review 

This rule is exempted from review by 

the Office of Management and Budget 

under Executive Order 12866. 

Executive Order 12988—Civil Justice 

Reform 

The Department of the Interior has 

conducted the reviews required by 

Section 3 of Executive Order 12988 and 

has determined that, to the extent 

allowable by law, this rule meets the 

applicable standards of Subsections (a) 

and (b) of that Section. However, these 

standards are not applicable to the 

actual language of State regulatory 

programs and program amendments 

because each program is drafted and 

promulgated by a specific State, not by 

OSM. Under Sections 503 and 505 of 

SMCRA (30 U.S.C. 1253 and 1255) and 

the Federal regulations at 30 CFR 

730.11, 732.15, and 732.17(h)(10), 

decisions on proposed State regulatory 

programs and program amendments 

submitted by the States must be based 

solely on a determination of whether the 

submittal is consistent with SMCRA and 

its implementing Federal regulations 

and whether the other requirements of 

30 CFR parts 730, 731, and 732 have 

been met. 

Executive Order 13132—Federalism 

This rule does not have Federalism 

implications. SMCRA delineates the 

roles of the Federal and State 

governments with regard to the 

regulation of surface coal mining and 

reclamation operations. One of the 

purposes of SMCRA is to ‘‘establish a 

nationwide program to protect society 

and the environment from the adverse 

effects of surface coal mining 

operations.’’ Section 503(a)(1) of 

SMCRA requires that State laws 

regulating surface coal mining and 

reclamation operations be ‘‘in 

accordance with’’ the requirements of 

SMCRA. Section 503(a)(7) requires that 

State programs contain rules and 

regulations ‘‘consistent with’’

regulations issued by the Secretary 

pursuant to SMCRA. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Government 

In accordance with Executive Order 

13175, we have evaluated the potential 

effects of this rule on federally 

recognized Indian tribes and have 

determined that the rule does not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

The basis for this determination is that 

our decision is on a State regulatory 

program and does not involve a Federal 

program involving Indian lands. 

Executive Order 13211—Regulations 

That Significantly Affect the Supply, 

Distribution, or Use of Energy 

On May 18, 2001, the President issued 

Executive Order 13211, which requires 

agencies to prepare a Statement of 

Energy Effects for a rule that is (1) 

considered significant under Executive 

Order 12866, and (2) likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Because 

this rule is exempt from review under 

Executive Order 12866 and is not 

expected to have a significant adverse 

effect on the supply, distribution, or use 

of energy, a Statement of Energy Effects 

is not required. 

National Environmental Policy Act 

Section 702(d) of SMCRA (30 U.S.C. 

1292(d)) provides that a decision on 

proposed State regulatory program 

provisions does not constitute major 

Federal actions within the meaning of 

Section 102(2)(C) of the National 

Environmental Policy Act (42 U.S.C. 

4332(2)(c)). A determination has been 

made that such decisions are 

categorically excluded from the NEPA 

process (516 DM 8.4.A). 

Paperwork Reduction Act 

This rule does not contain 

information collection requirements that 

require approval by OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3507 et seq.). 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule will not have a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). The State 

amendment that is the subject of this 

rule is based on counterpart Federal 

regulations for which an economic 

analysis was prepared and certification 

made that such regulations would not 

have a significant economic effect upon 

a substantial number of small entities. 

Accordingly, this rule will ensure that 

existing requirements previously 

promulgated by OSM will be 

implemented by the State. In making the 

determination as to whether this rule 

would have a significant economic 

impact, the Department relied upon the 

data and assumptions for the 

counterpart Federal regulations. 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

This rule: (a) Does not have an annual 

effect on the economy of $100 million; 

(b) Will not cause a major increase in 

costs or prices for consumers, 

individual industries, geographic 

regions, or Federal, State, or local 

government agencies; and (c) Does not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. This 

determination is based upon the fact 

that the State submittal, which is the 

subject of this rule, is based upon 

counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation was not considered a major 

rule. 

Unfunded Mandates 

This rule will not impose a cost of 

$100 million or more in any given year 

on any governmental entity or the 

private sector. 


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19122 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 

List of Subjects in 30 CFR Part 938 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: February 23, 2007. 

H. Vann Weaver, 

Acting Regional Director, Appalachian 

Region. 

■ For the reasons set out in the 

preamble, 30 CFR part 938 is amended 

as set forth below: 

PART 938—PENNSYLVANIA 

■ 1. The authority citation for part 938 

continues to read as follows: 

Authority: 30 U.S.C. 1201 et seq. 

■ 2. Section 938.15 is amended by 

adding a new entry in the table in 

chronological order by ‘‘Date of final 

publication’’ to read as follows: 

§ 938.15 Approval of Pennsylvania 

regulatory program amendments. 

* * * * * 

Original amendment submission 

date Date of final publication Citation/description 

* * * * * * * 

May 23, 2006 ................................. April 17, 2007 ................................ 25 Pa. Code: 86.187(a)(1), (b), (c); 86.188(b)(5) [deleted]; 

86.188(c)(3) [deleted]; 86.189(c)(2) through (c)(4) [deleted reference to (c)(5)], 86.189 (c)(5) [deleted]; 86.190 (a) [the words ‘‘but 

are not limited to’’ are deleted]; 86.190(a)(3) [deleted]. 

§ 938.16 [Amended] 

■ 3. Section 938.16 is amended by 

removing and reserving paragraphs 

(mm), (nn), (oo), (pp), (qq). 

[FR Doc. E7–7227 Filed 4–16–07; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No. 070119012–7077–02; I.D. 

031307B] 

RIN 0648–AU78 

Pacific Albacore Tuna Fisheries; 

Vessel List to Establish Eligibility to 

Fish for Albacore Tuna in Canadian 

Waters Under the U.S. Canada 

Albacore Tuna Treaty 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues this final rule to 

develop a new vessel list at the 

beginning of each calendar year of U.S. 

vessels eligible to fish for albacore tuna 

in Canadian waters. The vessel list 

would revert to zero vessels on 

December 31 of each year, unless NMFS 

receives a notice for a vessel to be added 

to the list for the upcoming year, with 

the requisite information. This 

regulation would clarify that the vessel 

list will remain valid for a single 

calendar year. Updating the list every 

year will facilitate the United States’

obligation to annually provide Canada a 

current list of U. S. vessels that are 

likely to fish albacore off the coast of 

Canada. The proposed rule is adopted 

without change. 

DATES: This final rule will be effective 

May 17, 2007. 

ADDRESSES: You may submit requests to 

be placed on the annual list of U.S. 

vessels eligible to fish for albacore tuna 

in Canadian waters, by any of the 

following methods: 

• E-mail: albacore.fish@noaa.gov. 

• Mail: Rodney R. McInnis, Regional 

Administrator, Southwest Region, 

NMFS, 501 West Ocean Blvd., Suite 

4200, Long Beach, CA 90802–4213. 

• Phone: (562)980–4024. 

• Fax: (562) 980–4047. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this final rule 

may be submitted to NMFS Southwest 

Region and by e-mail to 

DavidlRostker@omb.eop.gov, or fax to 

(202) 395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Chris Fanning, Southwest Region, 

NMFS, (562) 980–4198 or (562) 980–

4030. 

SUPPLEMENTARY INFORMATION: On 

February 7, 2007, NMFS published a 

proposed rule (72 FR 5652) proposing to 

revise the methodology to create a 

vessel list for vessels eligible to fish for 

albacore tuna in Canadian waters. The 

proposed rule is adopted without 

change. The 1981 Treaty Between the 

Government of the United States of 

America and the Government of Canada 

on Pacific Coast Albacore Tuna Vessels 

and Port Privileges (Treaty), as amended 

in 2002, establishes a number of 

obligations for both countries to control 

reciprocal fishing in waters of one 

country by vessels of the other country. 

One obligation requires each country to 

annually provide to the other country a 

list of its fishing vessels that are 

expected to fish for Pacific albacore tuna 

off the coast of the other country during 

the upcoming fishing season, generally 

June through October each year. 

As described in the 2004 final rule 

implementing amendments to the 

Treaty (69 FR 31531, June 4, 2004), and 

codified at 50 CFR 300.172, the list must 

include vessel and owner name, 

address, and phone number; USCG 

documentation number (or state 

registration if not documented); vessel 

operator (if different from the owner) 

and his or her address with phone 

number. Each U.S. vessel must be on the 

list for at least 7 days prior to engaging 

in fishing under the Treaty. This is 

intended to ensure that both countries 

have equal information as to eligible 

vessels. Canadian and U.S. enforcement 

officers need up-to-date lists of eligible 

vessels to adequately enforce the Treaty. 

Vessel owners who wish their vessels to 

remain on, or be added to the vessel list 

must contact NMFS (see ADDRESSES) 

and provide the required information. 

NMFS will notify fishermen via a 

confirmation letter or email of the date 

the request to be on the list was received 

and the date the vessel was placed on 

the list. 

Before the 2006 fishing season (June 

through October), NMFS did not require 

owners of albacore fishing vessels that 

wanted their vessels to be on the list of 

U. S. vessels eligible to fish for albacore 

tuna in Canadian waters under the 

Treaty, to contact NMFS. Instead, NMFS 

relied on a lengthy list created from 

information provided by the industry 

that was not readily verifiable and did 

not indicate whether each vessel owner 


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